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Welcome to cold and flu (or FMLA) season!

But is it a serious health condition?

Posted January 25, 2018

Bonnie was one of the few HR department employees in this week, as so many were out with the latest strain of the flu. While she was in the midst of looking into some payroll issues, Marvin, one of the company’s managers, appeared in the office doorway.

“Hi Marvin,” Bonnie said. “What can I do for you?”

“I’ve got a handful of employees out with the flu, and a couple need to stay home with sick kids. Many are asking whether their absences would qualify as FMLA leave.”

Bonnie thought for a few moments, and said “Probably not, but let me look into it to be sure. This year’s flu bug is nasty. I’ll get back to you.”

Tis the season for the flu bug to be marching through workplaces all over the country. As such, some employees (and employers) might be wondering whether the flu would qualify for FMLA protections. The answer: Generally not, but it could.

As is the case for answers to many employment-related questions, much will depend upon the specific facts in each case. For purposes of the FMLA, this includes whether the condition rises to the level of a serious health condition, which is often determined based on what the certification indicates. While a simple case of the flu would not generally meet the definition, a serious case could, and a high number of serious cases have been seen with the current strain. Basically, the name of a condition is not the determining factor.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider.

Inpatient care is generally an overnight stay in a health care facility. Therefore, if an employee (or family member) spent overnight in the hospital, it’s a serious health condition, qualifying for FMLA protections.

Continuing treatment is a bit more involved, however. Please note that “treatment” can include exams to determine if a serious health condition exists and evaluations of the condition.

Focusing on the flu, it would likely be a serious health condition that involves continuing treatment, which involves a period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves

  • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
  • Treatment at least once, resulting in a regimen of continuing treatment.

Since the flu is not a chronic condition, or one that is permanent or long term, the other parts of the definition of a serious health condition would not apply.

Therefore, if an employee was incapacitated (as opposed to being absent) for more than three days, you might want to start thinking the situation could involve the FMLA. The employee would, however, need to have received treatment as indicated in the definition. If an employee, for example, went to the doctor once and was told to go home and drink plenty of fluids, the employee would not be entitled to FMLA leave for this reason. If, on the other hand, an employee went to the doctor and was prescribed a medication, the employee could be entitled to FMLA leave.

The certification should provide enough information to help determine whether the condition meets the definition of a serious health condition, but you likely don’t want to ask for a certification for every employee who is out with the flu. Instead, you (or the applicable manager) could ask a few simple questions of employees when they call in, such as whether they went to the doctor and are under the continuing treatment of the doctor.

Many employees might need to stay home with sick children. Again, if the children have a serious health condition, that would qualify for FMLA leave. If, however, the children have a simple case of the flu and the employee simply needs to watch over them, that would not qualify for FMLA leave.

Hopefully, the flu season will begin to lose its grasp soon, and your flu-related FMLA issues will disappear.

FMLA Manager™ ServiceJ. J. Keller® FMLA Manager™ Service makes leave tracking easier while complying with the latest federal & state regulations.


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